Tippecanoe Loan & Trust Co. v. Cleveland, Cincinnati, Chicago & St. Louis Railway Co.

104 N.E. 866, 57 Ind. App. 644, 1914 Ind. App. LEXIS 161

• Court: Indiana Court of Appeals
• Decided: April 8, 1914
• Docket: No. 8,075
• Status: Published

Opinions

Lairy, C. J.

This action was brought to recover damages resulting from the death of George Arbegust. The facts disclosed by’ the record show that he received an injury while in the employ of appellee railway company as a section hand. On the morning of January 18, 1909, a passenger train operated by appellee was running in a southeasterly direction on its lines between the city of Lafayette and the city of Indianapolis. At a place a few miles southeast of Lafayette this train collided with a handcar which George Arbegust and another workman were at the time attempting to remove from the track, and as a result George Arbegust was injured. His leg was broken and severely cut, and he was rendered unconscious and incapable of taking care of himself. After the injury the trainmen took charge of Arbegust and placed him in the baggage car of the train and carried him to Colfax where a physician was called to dress his wounds, after which he was returned, on the afternoon of the same day, to Lafayette and placed in St. Elizabeth’s Hospital, and the physician employed by appellee called to attend him. After he was placed in the hospital blood poisoning developed and it became necessary to amputate his leg. The leg was amputated but he continued to suffer from the effects of blood poisoning until he died from that cause on August 9, 1909.

The ease went to trial on a single paragraph of complaint to which a general denial was filed. A general verdict was returned in favor of appellant and with this verdict the jury returned answers to a large number of interrogatories. The court on motion of appellee rendered judgment in its favor on the answers to interrogatories notwithstanding the general verdict, and overruled the motion of appellant for a judgment in its favor on the general verdict. These rulings are assigned as error by appellant while appellee assigns as cross error that the court erred in overruling its demurrer to the complaint.

1. The complaint does not proceed upon the theory that appellee was guilty of any negligence in causing the original injury to Arbegust, but the gravamen of the action is the negligence of appellee, after the decedent’s injury, and after appellee’s servants had taken the injured and unconscious man in charge, in failing to procure medical and surgical aid for him with reasonable dispatch or to place him in a hospital where such aid could be furnished. There are some averments in the complaint to the effect that the company’s physician at Colfax, who was the first to treat the injured man, was negligent in failing to disinfect the wound, and to remove the gravel, sand, cinders and other foreign substances from the wound, and that as a result blood poisoning ensued which resulted finally in death. It is well settled in this State that a railway company can not be held liable for damages resulting to one of its injured employes as the result of the negligence of a surgeon called by the company to render surgical aid to such employe. Pittsburgh, etc., R. Co. v. Sullivan (1895), 141 Ind. 83, 40 N. E. 138, 50 Am. St. 313, 27 L. R. A. 840, and cases there cited. This complaint does not aver that the appellee or its agents were negligent in selecting and employing an unskilled or incompetent surgeon, as the appellee can not be held liable for the negligence or unskilfulness of the surgeon which it called, no recovery can be based upon the alleged negligence of the surgeon. As before stated the question of the sufficiency of the complaint depenas entirely upon the facts alleged to show negligence on the part of the trainmen of appellee after the" had taken the injured man into their custody.

2. 3. If an employe of a railroad company is injured as a result of hazards to which his employment exposes him, and, if his injuries are of such a nature as to render him incapable of caring for himself, it becomes the duty of the company to take such steps as are reasonably necessary and proper under the circumstances to prevent an aggravation of the injury through exposure, or for want of medical or surgical assistance. Under such circumstances, if the servants of the company knowingly leave such injured person to die of exposure or to bleed to death from his wounds, a legal responsibility for such consequences will be imposed upon the company; and, if they take him into their custody, they must exercise reasonable care in the treatment accorded him. Under such circumstances the common instincts of humanity require that the helpless injured person should be taken in charge and removed to a place of safety and that, if necessary, medical or surgical aid should be provided. This duty has been recognized by the Supreme Court of this State as one which arises in extraordinary cases where medical or surgical assistance is imperatively required to save life, or to prevent further serious bodily injury. It is said that the duty arises with the emergency, and with it expires. Ohio, etc., R. Co. v. Early (1895), 141 Ind. 73, 40 N. E. 257, 28 L. R. A. 546; Terre Haute, etc., R. Co. v. McMurray (1885), 98 Ind. 358, 49 Am. Rep. 752.

In some jurisdictions the doctrine has been extended much further than we are required to go in deciding this case. It has been held to apply to cases where one party has been so injured as to render him helpless by an instrumentality under the control of another, even though no relation of master and servant, or carrier and passenger existed at the time. It has been said that the mere happening of an accident of this kind creates a relation which gives rise to a legal duty to render such aid to the injured party as may be reasonably necessary to save his life, or to prevent a serious aggravation of his injuries, and that this subsequent duty does not depend upon the negligence of the one party, or the freedom of the other party from contributory negligence, but that it exists irrespective of any legal responsibility for the original injury. Northern Central R. Co. v. State (1868), 29 Md. 420, 96 Am. Dec. 545; Whitesides v. Southern R. Co. (1901), 128 N. C. 229, 38 S. E. 878; Dyche v. Vicksburg, etc., R. Co. (1901), 79 Miss. 361, 30 South. 711; Depul v. Flatau (1907), 100 Minn. 299, 111 N. W. 1, 8 L. R. A. (N. S.) 485; Terre Haute, etc., R. Co. v. McMurray (1885), 98 Ind. 358, 49 Am. Rep. 752; Atchison, etc., R. Co. v. Weber (1885), 33 Kan. 543, 6 Pac. 877, 52 Am. Rep. 543; Beach, Contrib. Neg. §215; 2 Thompson, Negligence §1744. In other jurisdictions the courts refuse to recognize any legal duty on the part of a railroad company to care for an injured trespasser, holding that the company is under no legal responsibility to' such a person, and that if the employes of such a company undertake to render such a service to such a person, they engage in the discharge of a humane and moral duty which is beyond the scope of their employment, and that the company can not be charged with negligence on account of their failure to discharge such duty or by reason of the manner in which it is performed. Riley v. Gulf, etc., R. Co. (1913), 160 S. W. (Tex. Civ. App.) 595; Griswold v. Boston, etc., R. Co. (1903), 183 Mass. 434, 67 N. E. 354.

4. 5. In this case we are not required t© go to the extent indicated by the cases holding to the more liberal doctrine, and we are not required to disapprove the stricter rule enforced in Massachusetts and Texas. We are content to limit our decision to the facts of this ease and to base our ruling squarely on the decisions heretofore cited from the Supreme Court of this State. The allegations of the complaint show that after the aecident Arbegust was unconscious, that his injuries were of a serious nature but not necessarily fatal, and that he was in such a condition as to require the immediate aid of a surgeon. The complaint further shows that the aecident occurred on a very cold day at a point on appellee’s tracks about two miles from Lafayette, Indiana. The facts thus stated are sufficient to show that appellee owed the duty of removing the injured man to a place where he could be cared for, and of calling surgical aid. According to the averments of the complaint appellee undertook to perform this duty. The complaint charges that appellee failed to use reasonable care in the discharge of this duty in several particulars. In the first place it is alleged that while he was being carried from the place of the accident to Colfax, the injured man was negligently placed in a car which was cold and that no proper covering was provided, and that as a result he became chilled and his vitality reduced, and that the servants of appellee negligently failed and neglected to bandage the wound or to adopt any means to stop the flow of blood and that, as a consequence, the injured man lost a large quantity of blood before he received surgical aid, by reason of which his physical strength was greatly reduced and his power to resist blood poisoning was greatly impaired. In caring for the injured man after taking him in charge, the servants of appellee were bound to use such care and such care only as a person of ordinary prudence would have exercised in view of the situation and surroundings and of the facilities available, and of the apparent condition of the person injured. On behalf of appellee it is urged that the complaint is defective because it does not allege that appellee had the means of carrying Arbegust in a heated ear and failed to do so, or that covering was available with which he might have been protected from the cold, and that the servants of appellee failed to make use of it for that purpose, or that bandages were at hand with which the flow of blood might have been staunched, and that the servants of appellee possessed the skill to apply them properly and failed to do so. These allegations of the complaint are not defective for the reasons pointed out. They allege the ultimate fact that appellee negligently failed to do certain things, and such a charge is sufficient to admit proof of every evidentiary fact necessary to show that its servants did not use due care, making use of the means available in view of all the circumstances. It may be well said that a local passenger train is not required to carry bed clothing and bandages; but whether such things were in fact available was an evidentiary fact which might have been proved under the general allegations to which we have referred.

6. The complaint also charges that the servants of appellant were negligent in not backing the train to Lafayette and placing the injured person in a hospital there instead of carrying him to the station of Colfax. This is a general allegation of the ultimate fact and it was sufficient to authorize proof of facts showing that it was practicable and possible to have backed the train to Lafayette so as to have obtained earlier care and medical attendance. If such proof were made it would then be for the jury to say whether ordinary care required such a course of conduct. Similar objections are urged against other parts of the complaint charging other acts of negligence on the part of the servants of appellee in their treatment of the injured man. What has been said will in most part dispose of these objections. The court is satisfied that the complaint states a cause of action. The cross error assigned by appellee can not therefore be sustained.

7. By the general verdict, the jury found that appellee was guilty of the negligence charged in the complaint and that such negligence proximately caused the injury and damage for which appellant sues. The court rendered judgment on the answers to interrogatories notwithstanding the general verdict, and appellee seeks to sustain this ruling upon the ground that the facts found by such answers show that appellee was not guilty of any of the acts of negligence charged in the complaint. In order to sustain this contention it would be necessary for this court to hold that the facts so found are of such a character as to require the inference that appellee used due care in respect to every charge of negligence made by the complaint. Before the answers to interrogatories can be held to overcome the general verdict on the ground stated, the facts found must meet and negative every act of negligence charged in the complaint and must leave no opportunity for reconciling such facts with the general verdict by any evidence admissible within the issues.

8. 9. 10. The answers to the interrogatories are numerous and it would serve no useful purpose to set them out in this opinion. Some of the facts found in reference to the treatment of Arbegust after he was injured are consistent with due care, but this is not enough. The facts so found must be wholly inconsistent with any act of negligence which could have been proved under the allegations of the complaint. The answers to interrogatories show that at the time of the injury to Arbegust, dirt, gravel and other foreign and poisonous substances were imbedded in his wounds and remained present therein and caused blood poisoning of which he later died. Evidence was admissible within the issues to show that the persons in charge of the train knew or by the exercise of reasonable care should have known the condition of the injured man and the danger that threatened him. The evidence may have shown also that exposure to cold and loss of blood would greatly enhance the danger from blood poisoning, and that he could have been placed in a warmer car or that he could have been protected from the cold by wraps or other covering. The evidence may have shown, likewise, that the condition of the injured man, as known to the servants of appellee in charge of the train, was such as to require immediate attention at a well equipped hospital, and facts may have been disclosed from which the jury could rightly infer that it was feasible to have placed him in such a hospital within a reasonable time, that ordinary care dictated such a course, and that the failure to adopt it caused the disease which resulted in death. Such a state of the evidence would reconcile the answers to interrogatories with the general verdict. It is the duty of the trial court as well as of this court to reconcile the answers to interrogatories with the general verdict if it can be done by the consideration of any evidence admissible within the issues. The fact that the trial court may know that no such evidence has been introduced does not change the rule. In passing upon a motion for judgment on the answers to interrógatories the trial court can look only to the general verdict, the answers to interrogatories and the issues formed by the pleadings. It can not consider the evidence. If the evidence is insufficient to sustain the verdict, this defect can be reached only by a motion for a new trial. Evansville, etc., Traction Co. v. Spiegel (1912), 49 Ind. App. 412, 94 N. E. 718, 97 N. E. 949. The trial court may have known that no evidence had been introduced at the trial which could reconcile the answers to the interrogatories with the general verdict and this knowledge may have induced the ruling in favor of appellee for judgment in its favor on such answers. However such knowledge could not redeem the ruling from error. The trial court should have overruled the motion for judgment on the answers to the interrogatories notwithstanding the general verdict and then, if it believed that the evidence was not sufficient to sustain the general verdict, it would have been its duty to grant a new trial if a proper motion based upon such gronnd had been filed. In this ease the ends of justice will be best subserved by granting a new trial. The judgment is therefore reversed with directions to grant a new; trial.